| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Mr. John P. Infante | Member | |
| Mr. William D. Powers | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded.
APPLICANT STATES: In effect, that his BCD should be upgraded because he deserves a chance and should be granted amnesty as others have been. He indicates that his ability to serve was impaired based on his lacking a high school education when he entered the Army. He further states that he suffers from a Post Traumatic Stress Disorder (PTSD) as a result of his Vietnam service and this has caused extensive pain to him and his family and this coupled with his overall record of honorable service should support an upgrade to his discharge. In support of his application, he provides a letter of support from the Associate Pastor of the Keys Memorial Word Center Church.
EVIDENCE OF RECORD: The applicant's military records show:
On 6 August 1968, the applicant entered the Army for 2 years, on 22 December 1969, he was discharged for the purpose of immediate reenlistment, and on
23 December 1969, he immediately reenlisted for 3 years.
The applicant was trained and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty was sergeant/E-5. During his active duty tenure, the applicant earned the following awards: Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with 60 Device, and Meritorious Unit Citation.
The applicant’s record contains an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) on the following three occasions for the offenses indicated: 22 July 1970, for being absent without leave (AWOL) from 17 July 1970 to 21 July 1970; 29 April 1971, for twice disobeying a lawful order and for being in an off limits area; and 25 May 1971, for disobeying a lawful order and being disrespectful toward a commissioned officer. In addition, on 11 November 1971, he was convicted by a summary court-martial of being AWOL from 21 October 1971 to 1 November 1971. The resultant sentence included a reduction to specialist/E-4 and a forfeiture of $220.00.
On 24 May 1972, the applicant was convicted by a special court-martial (SPCM) of wrongfully impersonating a noncommissioned officer (NCO) and submitting a fraudulent claim in the amount of $1,285.20. He was sentenced to confinement for 149 days, a forfeiture of $128.00 per month for 5 months, and a BCD. On
23 August 1972, the convening authority approved only so much of the sentence that provided for a BCD, which he ordered executed upon completion of the appellate review.
SPCM Orders Number 95, dated 22 December 1972, issued by Headquarters, 1st Cavalry Division, Fort Hood, Texas, directed the BCD portion of the applicant’s sentence to be executed based on the findings and sentence having been finally affirmed. Accordingly, on 4 September 1973, the applicant was discharged after completing 4 years, 9 months, and 29 days of creditable active military service and having accrued a total of 92 days of time lost due to AWOL.
There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board notes the applicant’s contentions that his BCD should be upgraded because his ability to serve was impaired as a result of his lacking a high school education, the pain and suffering that the Vietnam war caused him and his family, his diagnosed PTSD, and his overall record of service. However, the Board finds these factors are not sufficiently mitigating to warrant an upgrade of his discharge.
2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed. The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.
3. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, the Board concludes that clemency is not warranted in this case.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__RVO__ _ _JPI __ __WDP___ DENY APPLICATION
| CASE ID | AR2001060478 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2001/11/29 |
| TYPE OF DISCHARGE | (BCD,) |
| DATE OF DISCHARGE | 19730904 |
| DISCHARGE AUTHORITY | AR Chapter 11 . . . . . |
| DISCHARGE REASON | Special Court-Martial |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1 92.03. | 105.00 |
| 2. 93.07 | |
| 3. 93.21 | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001056014C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust.
ARMY | BCMR | CY2013 | 20130007253
IN THE CASE OF: BOARD DATE: 5 December 2013 DOCKET NUMBER: AR20130007253 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He went to the RVN and asked again. Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2004 | 20040002536C070208
The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice UCMJ) on two separate occasions. On 13 June 1972, the applicant was separated with a BCD. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of...
ARMY | BCMR | CY2011 | 20110024198
Application for correction of military records (with supporting documents provided, if any). Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in...
ARMY | BCMR | CY2007 | 20070008643
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 December 2007 DOCKET NUMBER: AR20070008643 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant's records show that he was discharged on 21 December 1972 The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 with a Bad Conduct...
ARMY | BCMR | CY2012 | 20120005471
BOARD DATE: 25 September 2012 DOCKET NUMBER: AR20120005471 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. In view of the applicant's extensive disciplinary history and based on the gravity of the offenses resulting in his SPCM conviction...
ARMY | BCMR | CY2012 | 20120022131
BOARD DATE: 27 June 2013 DOCKET NUMBER: AR20120022131 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. His service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of...
ARMY | BCMR | CY2009 | 20090020323
Application for correction of military records (with supporting documents provided, if any). This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. The evidence of record confirms the applicant's conviction and discharge were effected in accordance with applicable law and regulations, and there...
ARMY | BCMR | CY2007 | 20070007613
He requests that he be granted an "honorable" discharge. The evidence of record shows the applicant's first period of service was honorable when he completed 1 year of active service before he was discharged for immediate reenlistment, while serving in Germany. The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.
ARMY | BCMR | CY2013 | 20130018023
The applicant requests his bad conduct discharge be upgraded to a general discharge. The applicant provides his DD Form 214 (Report of Separation from Active Duty) and three medical documents. Paragraph 11-1a of the version of the regulation in effect at that time, stated that an enlisted person would be receive a bad conduct discharge pursuant only to an approved sentence of a general court-martial imposing a bad conduct discharge.